Himachal Pradesh High Court
Smt. Narbada Devi vs State Of Hp & Ors on 11 December, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1 IN THE HIGH COURT OF HIMACHAL PRADESH, .
SHIMLA.
CWP No. 2210 of 2015.
Decided on: 11.12.2015.
Smt. Narbada Devi ...Petitioner.
of
Versus
State of HP & ors ...Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
rt Whether approved for reporting?No For the Petitioner : Ms. Shamma Khan, Advocate.
For the Respondents : Ms.V.K. Verma, Addl. A.G. with Mr.Vikram Thakur, and Ms. Parul Negi, Dy. A.G.s.
Tarlok Singh Chauhan, Judge (Oral).
The petitioner has filed the instant writ petition claiming therein the following substantive reliefs:-
"(a) That a writ in the nature of certiorari may kindly be issued quashing Annexure P-4 whereby the Inquiry Committee has rejected the representation holding that both the complainant and the petitioner are not entitled to be selected as Lecturer (History).
(b) That a writ in the nature of Mandamus may also kindly be issued to the respondents to allow the petitioner in Government Senior Secondary School Gharan District Mandi, as Lecturer (History) forthwith where she was working earlier and have gained much experience."::: Downloaded on - 15/04/2017 19:28:48 :::HCHP 2
2. On 20th September, 2007, the petitioner was .
appointed as Lecturer in History under Grant-in-Aid Scheme in Government Secondary School, Gharan, District Mandi. Since the regular hand joined, the services of the petitioner were dispensed with w.e.f. 16.10.2008. The petitioner preferred CWP of No.1083/2009 before this Court and the same was allowed by directing the respondents to reinstate her.
rt
3. On 29.06.2009, on joining of the regular incumbent, the services of the petitioner were again disengaged constraining the petitioner to again approach this Court by filing CWP No.13/2015 which came up for consideration on 02.01.2015 and was disposed of by passing the following directions:-
"Petitioner has made a representation vide Annexure P-2, dated 30.5.2014 for the redressal of her grievance. However, the same has not been decided till date.
2. Consequently, the present petition is disposed of with a direction to the respondent-State to decide the representation of the petitioner by passing a speaking/detailed order, within a period of four weeks from today. The pending application(s), if any, are also disposed of. No costs."
4. Pursuant to the aforesaid directions, the petitioner made representation, copy whereof is annexed as Annexure A-1 with CMP No.11444 of 2015 requesting the respondents to ::: Downloaded on - 15/04/2017 19:28:48 :::HCHP 3 have her case considered by the PTA Inquiry Committee in .
terms of the notification issued on 24.05.2014. The case of the petitioner was duly considered by the Committee and was rejected vide order dated 28 th February, 2015, which has been assailed in this petition on the ground that the inquiry of conducted by the Committee was not based on true facts and the inquiry is vitiated inasmuch as the Committee only relied rt upon the complaints which were false.
5. The respondents have filed separate replies, but, the sum and substance of these replies is that in the inquiry conducted the petitioner was found ineligible for appointment and, therefore, her services were terminated on 16.10.2008.
Moreover, there was no proper advertisement in terms of the notification issued by the Government on 29.06.2006 vitiating the entire process.
I have heard the learned counsel for the parties and have gone through the records of the case.
6. It is a settled legal proposition that no person can be appointed even on temporary or adhoc basis without inviting applications from all eligible persons. If the appointment is made through a limited process, the same will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates, who are ::: Downloaded on - 15/04/2017 19:28:48 :::HCHP 4 eligible for the post from being considered. A person employed .
in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment, mandatory compliance of the said constitutional requirement is to be fulfilled.
of
7. It is not in dispute that the respondents vide notification No.EDN-A (kha) 7-3/2006 dated 29.06.2006 had rt issued the following instructions regarding advertisement of the vacancies:-
"The PTAs should display the vacancy position and venue/date of the interview in the notice board of the concerned school, the PTAs office (if any) notice board of the Gram Panchayat concerned as well as the adjoining Panchayats. If PTAs have sufficient funds, they may even consider publicity through press/advertisement. The publicity through press/ advertisement is required only on the basis of the funds if available with the PTA."
8. Further, the Inquiry Committee has assigned the following reasons for rejecting the case of the petitioner:-
"1. Whether adequate publicity was made for the post:
According to the Principal concerned advertisement to the above said post of Lecturer (History was made through newspaper dated 05.09.2007. A perusal of the said adv. revealed that the applications were invited up to 19.9.2007 and interview was fixed for 20.09.2007 i.e. next day. No proper notice was displayed either at local Gram Panchayat office or ::: Downloaded on - 15/04/2017 19:28:48 :::HCHP 5 at adjoining Gram Panchayat offices. Therefore, .
adequate publicity of the vacant was not made.
2. Whether all the eligible candidates were invited for interview:
According to the Principal concerned no separate call letters were sent to the candidates to appear in the of interview. It was only through the above said advertisement dated 05.09.2007 whereby the applicants were informed about the submission of applications rt and also about the date of interview as 19.09.2007 and 20.09.2007 respectively. Therefore, proper procedure was not adopted by the PTA concerned to call the candidates for interview and as such the selection process was completed by the PTA selection committee in a hasty manner.
3. Interview held or not:
The interview was held for this post was held at GSSS Gharan on 20.09.2007. A perusal of the selection list revealed that the PTA selection committee has framed its own formula for the selection. Maximum marks are not mentioned for Experience and personal interview in the relevant columns of the result sheet. Respondent Narbada Devi has been awarded 15 marks of Experience additionally which has resulted into her selection. Total 15 candidates have applied for this post and out of them five were absent which means that they were not properly informed. One candidate was declared ineligible by the PTA selection committee. The selection result sheet is not signed by the Subject Expert and it is signed only the PTA Pradhan. However, PTA Pradhan Subject Expert and PTA Secretary have awarded marks to the candidates on separate sheets. Therefore, the formula followed and adopted by the PTA selection committee is objectionable and unlawful and cannot be considered to ::: Downloaded on - 15/04/2017 19:28:48 :::HCHP 6 be fair for recruitment on such posts and is not tenable .
in the eyes of law also.
4. Merit ignored or not:
Merit has also been ignored in this case, However, as per discussions held at Sr.No.1, 2 and 3 above, proper procedure was not adopted by the PTA of for the above selection and hence there seems to be no justification to apply the relevant proforma regarding ignoring of merit in this case.
rt Finding:
In view of above, nothing adverse has come to the knowledge of the committee towards previous inquiry report. All the points, which were thoroughly investigated by the committee headed by the then SDM are self-explanatory. Neither the candidates in person, nor the perusal of the case file could bring forth any new point which contravened the finding of previous inquiry. Therefore, after following due process and giving due opportunity to the appellant to present her case, the committee come to the conclusion that proper procedure to select the candidate for the above said post was not adopted by the PTA and hence the appointment of Smt.Narbada Devi as Lecturer (History) in GSSS Gharan made by the PTA of the said school is not acceptable as per instructions contained in Para No.11 of the guidelines of the notification No.EDN-A- Kha(7)3/2006, dated the 27th May, 2008."
9. Ms.Shamma Khan, learned counsel for the petitioner, vehemently argued that the post in question was duly advertised in the daily newspaper and, therefore, the findings arrived at by the Committee holding that there was no ::: Downloaded on - 15/04/2017 19:28:48 :::HCHP 7 proper advertisement in teeth of this advertisement cannot be .
sustained.
10. I have considered the so-called advertisement, copy whereof has been annexed as Annexure P-2 and find that the same is infact a news report published in some newspaper or of news magazine. There is no averment in the entire petition that this magazine/newspaper rt was having wide circulation, especially, in the Panchayat or adjoining Panchayat so as to enable the eligible candidates to apply for the post in question.
11. Moreover, the petitioner herself has not assailed the findings of the Inquiry Committee that the procedure for publicity as envisaged under notification dated 29.06.2006 (supra) has not been followed. This Court cannot lose sight of the fact that the post in question is at the village level and is essentially required to be filled up at the Gram Panchayat level.
The candidates would come to know about the vacancies' position only when notice to this effect is displayed on the notice board of the concerned Panchayat and the adjoining Panchayat.
12. Undoubtedly, the advertisement or report in the newspaper giving information regarding filing up of vacancy cannot be discarded. But, then it is further required to be proved that the newspaper/magazine had wide circulation in ::: Downloaded on - 15/04/2017 19:28:48 :::HCHP 8 the area and that the people had infact been regularly reading .
such magazines/newspapers.
13. It will not be far-fetched to state that even as on date despite there being a better road connectivity, the newspapers are hardly delivered in the villages. In such of circumstances, it was incumbent upon the petitioner to have led positive evidence by claiming that there had been an adequate rt publicity for the post in question and that the newspaper/magazine (Annexure P-2) had wide circulation.
14. In view of the above discussion, no exception can be taken to the findings recorded by the Inquiry Committee wherein they held that the petitioner has no vested right to be appointed as the proper procedure has not been adopted by the PTA to call all the eligible candidates for interview at the time when the petitioner had been selected.
15. Having said so, I find no merit in this petition and accordingly the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
(Tarlok Singh Chauhan), Judge.
December 11, 2015.
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